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Constitution of India-Freedom of speech and expression

Explain The Right To Freedom of Speech and Expression Under The Article 19 With The Help of Decided Cases. What Are The Grounds on Which This Freedom Could Be Restricted

Article 19(1) (a) of the Constitution of India states that, “all citizens shall have the right to freedom of speech and expression”. The philosophy behind this Article lies in the Preamble of the Constitution, where a solemn resolve is made to secure to all its citizen, liberty of thought and expression. The exercise of this right is, however, subject to “reasonable restrictions” for certain purposes being imposed under Article 19(2) of the Constitution of India.

The main elements of right to freedom of speech and expression are as under-

1. This right is available only to a citizen of India and not to foreign nationals.

2. The freedom of speech under Article 19(1) (a) includes the right to express one’s views and opinions at any issue through any medium, e.g. by words of mouth, writing, printing, picture, film, movie etc.

3. This right is, however, not absolute and it allows Government to frame laws to impose reasonable restrictions in the interest of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency and morality and contempt of court, defamation and incitement to an offence.

4. This restriction on the freedom of speech of any citizen may be imposed as much by an action of the State as by its inaction. Thus, failure on the part of the State to guarantee to all its citizens the fundamental right to freedom of speech and expression would also constitute a violation of Article 19(1)(a).

Decided Cases Which Explained Freedom of Speech And Expression

Over the years, judicial creativity, judicial wisdom and judicial craftsmanship have widened the scope of freedom of speech & expression by including in it the following aspects-
a. Freedom of Press-Democracy can thrive through vigilant eye of Legislature but also care and guidance of public opinion and press par excellence. Freedom of speech include right to propagate one’s views through print media or any other communication channel e.g radio, television subject to reasonable restrictions imposed under Article 19(2).Romesh Thappar v. State of Madras(1950 SCR 594, 607; AIR 1950 SC 124),was amongst the earliest cases to be decided by the Supreme Court declaring freedom of press as a part of freedom of speech and expression. Patanjali Sastri, J.,rightly observed that-‘Freedom of Speech and of Press lay at the foundation of all democratic organizations, for without free political discussion, no public education, so essential for the proper functioning of the process of Government, is possible’.

In the case of Indian Express v. Union of India,(1985) 1 SCC 641,it has been held that the Press plays a very significant role in the democratic machinery. The courts have duty to uphold the freedom of press and invalidate all laws and administrative actions that abridge that freedom.

Freedom of Press includes freedom of publication, freedom of circulation and freedom against pre-censorship.

In Sakal Papers Ltd. v. Union of India,[AIR 1962 SC 305]the Daily Newspapers (Price and Page) Order, 1960, which fixed the number of pages and size which a newspaper could publish at a price and inBennett Coleman and Co. v. Union of India,[AIR 1973 SC 106; (1972) 2 SCC 788],the validity of the Newsprint Control Order, which fixed the maximum number of pages, was struck down by the Supreme Court of India holding it to be violative of provision of Article 19(1)(a) and not to be reasonable restriction under Article 19(2). The Court struck down the Government’s stand that it would help small newspapers to grow."

In the case of Brij Bhushan v. State of Delhi(AIR 1950 SC 129), the validity of order imposing pre-censorship on an English Weekly of Delhi, which directed the editor and publisher of a newspaper to submit for scrutiny, in duplicate, before the publication, all communal matters, all the matters and news and views about Pakistan, including photographs, and cartoons, on the ground that it was a restriction on the liberty of the press, was struck down by court.

b. Freedom of Commercial speech

In Tata Press Ltd. Vs. Mahanagar Telephone Nigam Ltd., the Supreme Court held that a commercial advertisement or commercial speech was also a part of the freedom of speech and expression, which would be restricted only within the limitation of Article 19(2). Supreme Court held that advertising, which is no more than a commercial transaction, is nonetheless dissemination of information regarding the product-advertised. Public at large are benefited by the information made available through the advertisements. In a democratic economy, free flow of commercial information is indispensable.

c. Right to Broadcast

The concept speech and expression has evolved with the progress of technology and include all available means of expression and communication. This would include the electronic and the broadcast media.

In Odyssey Communications (P) Ltd .v. Lokvidayan Sanghatana, the Supreme Court held that the right of a citizen to exhibit films on the State channel – Doordarshan is part of the fundamental right guaranteed under Article 19(1)(a). In this case, the petitioners challenged the exhibition on Doordarshan of a serial titled “Honi Anhonion” on the ground that it encouraged superstitious and blind faith amongst viewers. The petition was dismissed as the petitioner failed to show evidence of prejudice to the public.

d. Right to information

The freedom of 'speech and expression' comprises not only the right to express, publish and propagate information, it circulation but also to receive information. This was held by the Supreme Court in a series of judgements which have discussed the right to information in varied contexts from advertisements enabling the citizens to get vital information about life-saving drugs, to the right of sports lovers to watch cricket and the right of voters to know the antecedents of electoral candidates.

The Supreme Court observed inUnion of India v. Assn. for Democratic Reforms, "One-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions".(2002) 5 SCC 294.

e. Right to criticize

In S. Rangarajan v.P. Jagjivan Ram, everyone has a fundamental right to form his opinion on any issues of general concern. Open criticism of government policies and operations is not a ground for restricting expression. Intolerance is as much dangerous to democracy as to the person himself. In democracy, it is not necessary that everyone should sing the same song

f. Right to expression beyond national boundaries

In Maneka Gandhi vs Union of India, the Supreme Court considered whether Article 19(1)(a) of Indian Constitution was confined to Indian territory and held that the freedom of speech and expression is not confined to National boundaries.

g. Right not to speak or Right to silence is also included in the Right to speech and expression.

In the case of National Anthem, three students were expelled from the school for refusal to sing the national anthem. However, the children stood up in respect when the national anthem was playing. The validity of the expulsion of the students was challenged before the Kerala High Court and they upheld the expulsion of the students on the ground that it was their fundamental duty to sing the national anthem. However, on an appeal being filed against the order of the Kerala High Court before the Supreme Court, it was held by the Supreme Court that the students did not commit any offence under the Prevention of Insults to National Honour Act, 1971. Also, there was no law under which their fundamental right under Article 19(1) (a) could be curtailed. Bijoe Emmanuel v. State of Kerala 1986 3 SC 615

The Grounds on Which This Freedom Could Be Restricted

Clause (2) of Article 19 of the Indian constitution imposes certain restrictions on free speech under following heads:
I. security of the State,
II. friendly relations with foreign States
III. public order,
IV. decency and morality,
V. contempt of court,
VI. defamation,
VII. incitement to an offence, and
VIII. sovereignty and integrity of India.

Security of the State:

Reasonable restrictions can be imposed on the freedom of speech and expression, in the interest of the security of the State. The term security of state has to be distinguished from public order. For security of state refers to serious and aggravated forms of public disorder, example rebellion, waging war against the state [entire state or part of the state], insurrection etc People’s Union for Civil Liberties (PUCL) v. Union of India.10

In the case of People’s Union for Civil Liberty versus Union of India AIR 1997 SC 568 a public interest litigation (PIL) was filed under Article 32of the Indian Constitution by PUCL, against the frequent cases of telephone tapping. The validity of Section 5(2)of The Indian Telegraph Act, 1885 was challenged. It was observed that “occurrence of public emergency” and “in the interest of public safety” is the sine qua non for the application of the provisions of Section 5(2). If any of these two conditions are not present, the government has no right to exercise its power under the said section. Telephone tapping, therefore, violates Article 19(1) (a) unless it comes within the grounds of reasonable restrictions under Article 19(2).

Friendly relations with foreign States:

This ground was added by the Constitution (First Amendment) Act of 1951. The State can impose reasonable restrictions on the freedom of speech and expression, if it hampers the friendly relations of India with other State or States.

Public order:

This ground was added by the Constitution (First Amendment) Act, 1951 in order to meet the situation arising from the Supreme Court's decision in Romesh Thapar’s, case (AIR 1950 SC 124). As per hon’ble Supreme court, public order is different from law and order and security of state [Kishori Mohan v. State of West Bengal]. The expression 'public order' connotes the sense of public peace, safety and tranquillity. Anything that disturbs public peace disturbs public order [Om Prakash v. Emperor, AIR 1948 Nag, 199].But mere criticism of the government does not necessarily disturb public order.A law, which punishes the deliberate utterances hurting the religious feelings of any class has been held to be valid and reasonable restriction aimed to maintaining the public order.

Decency and morality section 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression on the grounds of decency and morality, it prohibits the sale or distribution or exhibition of obscene words. The standard of morality changes with changing times. Supreme Court in RanjitD. Udeshi v. State of Maharashtra (AIR 1965 SC 881)upheld the conviction of a book seller who was prosecuted under Section 292, I.P.C., for selling and keeping the bookLady Chatterley's Lover.

Contempt of court:

The constitutional right to freedom of speech would not allow a person to contempt the courts. The expression Contempt of Court has been defined Section 2 of the Contempt of Courts Act, 1971. The term contempt of court refers to civil contempt or criminal contempt under the Act.

In E.M.S. Namboodripad v. T.N. Nambiar(1970) 2 SCC 325; AIR 1970 SC 2015), the Supreme Court confirmed the decision of the High Court, holding Mr. Namboodripad guilty of contempt of court. In M.R. Parashar v. Farooq Abdullah(1984) 2 SCC 343; AIR 1984 SC 615),contempt proceedings were initiated against the Chief Minister of Jammu and Kashmir. But the Court dismissed the petition for want of proof.

Defamation:

The clause (2) of Article 19 prevents any person from making any statement that defames the reputation of another. Defamation is a crime in India inserted into Section 499 and 500 of the I.P.C. Right to free speech is not absolute. It does not mean freedom to hurt another’s reputation which is protected under Article 21 of the constitution. Although truth is considered a defence against defamation, but the defence would help only if the statement was made ‘for the public good.’ And that is a question of fact to be assessed by the judiciary.

Incitement to an offense: This ground was also added by the Constitution (First Amendment) Act, 1951. The Constitution also prohibits a person from making any statement that incites people to commit offense.

Sovereignty and integrity of India: This ground was added subsequently by the Constitution (Sixteenth Amendment) Act, 1963. This is aimed to prohibit anyone from making the statements that challenge the integrity and sovereignty of India.

To conclude, right to freedom of speech and expression, is an important fundamental right, scope of which, has been widened to include freedom of press, right to information including commercial information, right to silence and right to criticize. The said right is however, subjective to reasonable restrictions under Article 19(2).

* [sample Question LLB Ist Semester – Paper-constitution of India-i]
Writers note-this question has 3 parts namely, explain right to freedom of speech & expression under the Article 19; substantiate the said explanation by decided cases and enumerate the grounds of restrictions on freedom of speech and expression.

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